KANUBHAI CHHAGANBHAI PATELversusSTATE OF GUJARAT

     R/CR.A/1342/2021                                 JUDGMENT DATED: 15/06/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1342 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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             Approved for Reporting                  Yes          No

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                          KANUBHAI CHHAGANBHAI PATEL
                                     Versus
                            STATE OF GUJARAT & ANR.
================================================================
Appearance:
MR P P MAJMUDAR(5284) for the Appellant(s) No. 1
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 15/06/2026

                                   JUDGMENT


1.      The present appeal is filed by the appellant – original
complainant under Section 378 of the Criminal Procedure Code, 1973
(hereinafter referred to as ‘the Code’ for short) / under Section 419 of
the Bharatiya Nagrik Suraksha Sanhita, 2023 (hereinafter referred to
as ‘BNSS’ for short) against the judgment and order dated 29.02.2020
passed by the learned 4th Additional Senior Civil Judge & Additional
Chief Judicial Magistrate, Vadodara (hereinafter be referred to as “the
Trial Court), whereby the learned trial Court had acquitted the
respondent -            accused for the offence under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI



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Act’ for short).


2.      Heard learned Additional Public Prosecutor appearing for the
respondent - State.


3.      Learned Additional Public Prosecutor for respondent – State of
Gujarat has submitted that this matter is required to be transferred in
view of the recent decision of the Hon’ble Supreme Court in the case
of    Celestium Financial Vs. A.Gnanasekaran Etc. reported in
2025 (3) GLH 747 wherein the Hon’ble Supreme Court has held that
the original complainant to be considered as a victim of the offence
under Section 138 of the Act and, therefore, the complainant has right
to file an appeal under Section 372 of the Code before the lower
Appellate Court i.e. immediate Sessions Court before the District and
the judgment dated 22.12.2025 rendered in Criminal Misc. Application
No.12753 of 2019 with Criminal Misc. Application No. 12908 of 2019.


4.      Before entering into the merits of this case, this Court deems it
proper to refer to the decision rendered by this Court in the case of
Shivsinh Ganpatsinh Solanki Vs. State of Gujarat being Criminal
Miscellaneous Application Nos. 12753 of 2019 with 12908 of 2019 and
the decision of the Hon'ble Supreme Court in the case of Celestium
Financial Vs. A. Gyanasekaran (supra) wherein the Hon’ble
Supreme Court has observed and held that the complainant, in a
complaint under Section 138 of the N.I. Act, considered to be a victim,
has a specific right to file an appeal against the order of acquittal
under Section 372 of the Code / Section 413 of the BNSS to the Court
which is immediately superior in hierarchy i.e. the Sessions Court.


5.      Learned Additional Public Prosecutor has pointed out that the


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matter in the case of Celestium Financial Vs. A. Gyanasekaran
(supra) is now pending at large before the Hon’ble Supreme Court in
Special Leave to Appeal (Crl.) No. 12350/2024 wherein the Hon’ble
Supreme Court has observed that it is desirable that a larger Bench
gives an authoritative pronouncement on this issue as it has far-
reaching consequences. Therefore, the matter is to be decided
subject to the final outcome of the reference.


6.      In the case of Celestium Financial Vs. A. Gyanasekaran
(supra), the Hon’ble Supreme Court has held and observed in paras –
7.8, 7.9 and 7.12 as under:-

          “7.8 In the case of an offence alleged against an accused under
          Section 138 of the Act, we are of the view that the complainant
          is indeed the victim owing to the alleged dishonour of a cheque.
          In the circumstances, the complainant can proceed as per the
          proviso to Section 372 of the CrPC and he may exercise such an
          option and he need not then elect to proceed under Section 378
          of the CrPC.

          7.9 In this context, we wish to state that the proviso to Section
          372 does not make a distinction between an accused who is
          charged of an offence under the penal law or a person who is
          deemed to have committed an offence under Section 138 of the
          Act. Symmetrical to a victim of an offence, a victim of a deemed
          offence under Section 138 of the Act also has the right to prefer
          an appeal against any order passed by the court acquitting the
          accused or convicting for a lesser offence or imposing an
          inadequate compensation. When viewed from the perspective of
          an offence under any penal law or a deemed offence under
          Section 138 of the Act, the right to file an appeal is not
          circumscribed by any condition as such, so long as the appeal
          can be premised in accordance with proviso to Section 372
          which is the right to file an appeal by a victim, provided the
          circumstances which enable such a victim to file an appeal are
          met. The complainant under Section 138 is the victim who must
          also have the right to prefer an appeal under the said provision.
          Merely because the proceeding under Section 138 of the Act
          commences with the filing of a complaint under Section 200 of
          the CrPC by a complainant, he does not cease to be a victim
          inasmuch as it is only a victim of a dishonour of cheque who can
          file a complaint. Thus, under Section 138 of the Act both the
          complainant as well as the victim are one and the same person.


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     7.12 The reasons for the above distinction are not far to see
     and can be elaborated as follows:

     Firstly, the victim of a crime must have an absolute right to
     prefer an appeal which cannot be circumscribed by any
     condition precedent. In the instant case, a victim under Section
     138 of the Act, i.e., a payee or the holder of a cheque is a person
     who has suffered the impact of the offence committed by a
     person who is charged of the offence, namely, the accused,
     whose cheque has been dishonoured.

     Secondly, the right of a victim of a crime must be placed on par
     with the right of an accused who has suffered a conviction, who,
     as a matter of right can prefer an appeal under Section 374 of
     the CrPC. A person convicted of a crime has the right to prefer
     an appeal under Section 374 as a matter of right and not being
     subjected to any conditions. Similarly, a victim of a crime,
     whatever be the nature of the crime, unconditionally must have
     a right to prefer an appeal.

     Thirdly, it is for this reason that the Parliament thought it fit to
     insert the proviso to sub-section 372 without mandating any
     condition precedent to be fulfilled by the victim of an offence,
     which expression also includes the legal representatives of a
     deceased victim who can prefer an appeal. On the contrary, as
     against an order of acquittal, the State, through the Public
     Prosecutor can prefer an appeal even if the complainant does
     not prefer such an appeal, though of course such an appeal is
     with the leave of the court. However, it is not always necessary
     for the State or a complainant to prefer an appeal. But when it
     comes to a victim’s right to prefer an appeal, the insistence on
     seeking special leave to appeal from the High Court under
     Section 378(4) of the CrPC would be contrary to what has been
     intended by the Parliament by insertion of the proviso to Section
     372 of the CrPC.

     Fourthly, the Parliament has not amended Section 378 to
     circumscribe the victim’s right to prefer an appeal just as it has
     with regard to a complainant or the State filing an appeal. On
     the other hand, the Parliament has inserted the proviso to
     Section 372 so as to envisage a superior right for the victim of
     an offence to prefer an appeal on the grounds mentioned therein
     as compared to a complainant.

     Fifthly, the involvement of the State in respect of an offence
     under Section 138 of the Act is conspicuous by its absence. This
     is because the complaint filed under that provision is in the
     nature of a private complaint as per Section 200 of the CrPC and
     Section 143 of the Act by an express intention incorporates the
     provisions of the CrPC in the matter of trial of such a deemed



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             offence tried as a criminal offence. Therefore, the complainant,
             who is the victim of a dishonour of cheque must be construed to
             be victim in terms of the proviso to Section 372 read with the
             definition of victim under Section 2(wa) of the CrPC.”


7.         In view of the said submissions and the decision of the Hon’ble
Supreme Court in the case of Celestium Financial Vs. A.
Gyanasekaran (supra) and decision of this Court in the case of
Thakar Hariprasad Dalsukhram Vs. State of Gujarat and
another reported in 2026 SCC OnLine Guj 569, this appeal is
disposed of with a direction to the Registry to transfer the appeal to
the concerned Sessions Court. After it is transferred to the concerned
Sessions Court, it has to be treated as an Appeal under the proviso
under Section 372 of the Code / Section 413 of BNSS and numbered
accordingly and issue notice to the parties. The Registry is directed to
transfer the entire record of the case, including the certified copies of
the order impugned and record & proceedings, if lying with this Court,
to the concerned lower Appellate Court, forthwith.


8.         Considering that the matter has been pending for considerable
time, the learned lower Appellate Court is required to make
endeavour to dispose of the matter as expeditiously as possible. It is
clarified that this Court has not gone into the merits of the matter at
this stage.

                                                                   (HEMANT M. PRACHCHHAK,J)

Dolly




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: DOLLYBEN CHETANBHAI VADUKAR(HC01392), PRIVATE SECRETARY, at High Court of Gujarat on 15/06/2026 17:22:47



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